Citation Nr: 0432459
Decision Date: 12/08/04 Archive Date: 12/15/04
DOCKET NO. 03-05 752 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Medical and Regional
Office Center (RO) in Fargo, North Dakota
THE ISSUE
Entitlement to service connection for hypertension secondary
to service-connected diabetes mellitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Robert E. O'Brien, Counsel
INTRODUCTION
The veteran had active service from September 1968 to
June 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2002 rating decision of the
VARO in Fargo, North Dakota, that denied service connection
for hypertension.
The appeal is REMANDED to the RO by way of the Appeals
Management Center (AMC), in Washington, DC. VA will notify
the veteran should further action be required.
The Board notes that service connection is in effect for
diabetes mellitus and several other disabilities associated
with the diabetes. A combined disability evaluation of
80 percent has been in effect since July 18, 2001. By rating
decision dated in September 2003, entitlement to a total
rating based on individual unemployability by reason of
service-connected disabilities was granted, with an effective
date of July 18, 2001.
REMAND
The United States Court of Appeals for Veterans Claims
(Court) has held that 38 U.S.C.A. § 5103(a) (West 2002), as
amended by the Veterans Claims Assistance Act of 2000 (VCAA)
and 38 C.F.R. § 3.159(b) (2004), as recently amended, require
VA to inform a claimant as to what evidence VA will provide
and what evidence the claimant is to provide, and remanding
where VA fails to do so. See Quartuccio v. Principi,
16 Vet. App. 183 (2002); see also 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326(a) (2004).
A review of the record in this case discloses the veteran has
not been provided specific notice of the VCAA with regard to
the issue at hand, particularly VA's obligation to inform him
what portion of the evidence and information, if any, is to
be provided by him, and what portion, if any, the VA will
attempt to obtain on his behalf. See 38 U.S.C.A. § 5103.
The record reveals that the veteran's principal argument is
that he has hypertension that has been aggravated by his
service-connected diabetes. The record contains a
November 2002 communication from a Physician's Assistant,
Certified, at a diabetes care center, in which she indicated
that it was "impossible" to say whether the veteran's
hypertension or diabetes developed first. She essentially
indicated that whichever one developed first, it was her
opinion that "hypertension has a significant impact on the
prognosis of people with diabetes." She referred to a study
that reportedly showed that treatment of hypertension had a
greater impact in preventing complications in diabetes then
blood glucose control. She added that, in her opinion,
hypertension "can increase the risk of stroke, heart attack,
and kidney disease in people with diabetes."
With this comment in mind, the Board believes that a medical
opinion is warranted to address the veteran's claim that his
hypertension has been aggravated by his service-connected
diabetes. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)
(2004).
In view of the foregoing, the case is REMANDED for the
following:
1. The VA should contact the veteran to
obtain the names and addresses of all
medical care providers, private or VA,
who evaluated or treated him for
hypertension since separation from
service. After securing any necessary
releases, VA should obtain any records
indicated that are not already in the
claims folder.
2. VA must ensure compliance with the
requirements of the VCAA. VA's attention
is directed to Quartuccio v. Principi,
16 Vet. App. 183, which requires that VA
identify for the veteran what evidence
the VA will obtain and what evidence the
veteran is expected to present. VA
should provide the veteran written
notification specific to his claim on the
impact of the notification requirements
on his claim.
3. The veteran should be afforded an
examination by VA to determine whether
his service-connected diabetes mellitus
caused or aggravated his hypertension.
The claims folder should be made
available to the examiner for review
before the examination. Following a
review of the relevant medical records in
the claims file, the examiner is asked to
state whether it is at least as likely as
not (50 percent more likelihood) that the
veteran's hypertension was caused or
aggravated (worsening of underlying
condition versus temporary flare-up of
symptoms) by his service-connected
diabetes mellitus. If the requested
medical opinion cannot be provided
without resulting to pure speculation,
this should be so noted. The examiner is
also asked to provide the complete
rationale for any opinion expressed,
preferably with citation to the clinical
record.
4. Thereafter, after completing any
additional development deemed necessary,
the RO should readjudicate the claim for
service connection. If the benefit
sought remains denied, the veteran and
his representative should be provided a
supplemental statement of the case. This
must contain notice of all the relevant
actions taken on the claim for benefits.
An appropriate period of time should be
allowed for response.
Then, the case should be returned to the Board for further
appellate consideration, if otherwise in order. The Board
intimates no opinion as to any final outcome warranted. The
veteran is apprised of the importance of appearing for any
scheduled examination and the impact of any failure to report
on his claim. 38 C.F.R. § 3.655 (2004).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).